Comments on the texts which constitute
the final agreement on the proposed Reform Treaty by Steve Peers,
Professor of Law, University of Essex

DS 865/07: this is a new Declaration which will protect the European
Parliament's prerogatives as regards the appointment of the CFSP
High Representative when the Reform Treaty enters into force
(this is likely to be early in 2009, if the Treaty is successfully
ratified), and as regards the appointment of the High Representative
as part of the next Commission (taking office in November 2009).

DS 866/07: this is a new Declaration approving in advance
a proposal the Court of Justice might make to increase the number
of Advocates-General (who give advisory opinions on most cases)
at the Court of Justice from 8 to 11. Presumably the Court will
be willing to make such a proposal. At present 5 of the 8 Advocates-General
are allocated permanently to the five biggest Member States,
and the remaining 2 Advocate-General posts rotate among the other
22 Member States. The change will mean that 6 of the 11 Advocates-General
will be allocated to the six biggest Member States, while the
remaining five posts will rotate among the remaining 21 Member
States.

Although the Treaty could be amended to provide for more Advocates-General,
it has instead been agreed that this change will take place on
the bassis of the existing Treaties, which provide for the appointment
of additional Advocates-General if the Court proposes them and
the Council agrees unanimously. So it is possible that the change
will be made and take effect even before the Reform Treaty enters
into force, and would therefore remain valid even if the Treaty
is not ratified. It would always be possible, however, to wait
until the Treaty is ratified for the Court to make the proposal
or for the Council to approve it. It remains to be seen which
option is chosen.

DS 869/07 amends the draft Treaty itself (Article 9a TEU)
to provide that the EP President shall not be counted against
the ceiling of 750 MEPs. This wording does not appear to deprive
him/her of a vote (which is usually only cast to break a tie).
A new Declaration states that Italy gets the extra seat thus
created, so that Italy will have an equal number of seats as
the UK, and a further declaration states that the European Council
will approve the EP's proposal on seat distribution (which the
EP plenary adopted on October 10th) as amended. The EP will still
have to give its consent to this decision, which seems likely;
and this decision cannot be adopted formally until the new Treaty
enters into force. But Member States and political parties can
now plan for the next European Parliament election in June 2009
knowing how many seats each Member State will then have.

DS 870/07 amends declaration 28, which exists already in the
draft Reform Treaty, to add a sentence at the end of the second
paragraph. This new sentence provides that the Conference welcomes
that the Commission will give particular attention to Council
requests to propose the repeal of legislation. The Czechs had
pushed for this -- but it does not go as far as they wanted in
requiring the Commission to make such proposals upon the Council's
request.

DS 871/07 amends declaration 4, which already exists in the
draft Reform Treaty. The text of the decision in the declaration,
which concerns delays in decision-making if there are nearly
enough votes in the Council to form a blocking minority, will
now be adopted on signature of the Treaty, not six months after
signing. The problem that there is no legal base for this decision
in the existing Treaty or the future Treaty as amended is ignored.
Point 3 in the preamble, which stated that the decision will
be retained as long as necessary, is dropped. The point in Article
7, according to which the decision would enter into effect on
1 November 2014, has been dropped. But it is hard to see how
the decision could have any legal impact before that date anyway,
since it only governs the position when the voting rules in the
Council change, and this change will only take effect from that
date.

DS 878/07 is a new protocol on the same issue. It simply says
that the European Council will discuss any amendment to that
Council decision on decision-making, acting by consensus. This
does NOT mean that the draft Decision has been transferred to
a Protocol, as the Poles had wanted and as the press had suggested
(this would have been by far the best solution from a technical
legal point of view). It does not exactly mean that the European
Council must approve any amendment by consensus either.

There were other issues raised at the informal summit meeting
in relation to the proposed Treaty. The Austrian demand to restrict
the number of university students from other Member States coming
to Austria has been settled, according to the press, by the Commission
freezing infringement proceedings. There was also a Bulgarian
demand regarding the spelling of 'euro' as 'evro'. It is not
clear how this was settled.

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